No, “quite simply,” Oklahoma Attorney General Scott Pruitt got it legally wrong in his statement criticizing the Oklahoma Supreme Court’s decision Tuesday that the controversial Ten Commandments monument on state Capitol grounds must be removed.
The 7 to 2 court ruling seems obvious, and one doesn’t have to be an attorney to understand it. The monument is a religious symbol on state public property, which is an obvious violation of the Oklahoma Constitution. The American Civil Liberties Union of Oklahoma and its national affiliate brought the winning lawsuit to get the monument removed.
Here’s Pruitt’s statement:
Quite simply, the Oklahoma Supreme Court got it wrong. The court completely ignored the profound historical impact of the Ten Commandments on the foundation of Western law. Furthermore, the court’s incorrect interpretation of Article 2, Section 5 contradicts previous rulings of the court. In response, my office will file a petition with the court for a rehearing in light of the broader implications of this ruling on other areas of state law. In the interim, enforcement of the court’s order cannot occur. Finally, if Article 2, Section 5, is going to be construed in such a manner by the court, it will be necessary to repeal it.”
Here’s Article 2, Section 5 of the state constitution:
No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.
The first question for Pruitt, pictured right, of course, is how else could you not consider the “or property” and “or used” and “or support" and a “system of religion” as ambiguous in any sense. The second question is how can you dismiss the Ten Commandments as merely historical when they appear in the Bible? They are organically religious. They only exist because of religion. The Ten Commandments begin, “I am the Lord and God/Thou shalt have no other Gods before me.” How can anyone argue that’s not religious?
I hope the court denies Pruitt’s request for a rehearing just on the grounds that the state constitution is so convincingly clear on the issue. Pruitt’s argument for repeal if the constitutional section is “going to be construed in such a manner” also has its own set of problems.
Here are two of those problems:
Oklahoma Constitution, Article One, Section One: The State of Oklahoma is an inseparable part of the Federal Union, and the Constitution of the United States is the supreme law of the land.
Oklahoma Constitution, Article One, Section Two: Perfect toleration of religious sentiment shall be secured, and no inhabitant of the State shall ever be molested in person or property on account of his or her mode of religious worship; and no religious test shall be required for the exercise of civil or political rights. Polygamous or plural marriages are forever prohibited.
Leave aside the issue of polygamous or plural marriages in the second section. The first section makes it clear that the U.S. Constitution supersedes the Oklahoma Constitution, which may mean the issue will probably be decided on a U.S. Supreme Court interpretation of the Establishment Clause in the First Amendment. But the second section complicates it further. For example note the language, “. . . no inhabitant of the State shall ever be molested in person or property on account of his or her mode of religious worship . . . “ Couldn’t people outside the Judeo-Christian religious system argue the monument makes them feel like second-class citizens and thus “molests” them psychologically or denies them equal standing in state government?
So will Pruitt also lead the charge to rewrite other major sections of the state constitution that make Oklahoma “an inseparable” part of the United States and protect people, even Christians, against religious discrimination? My point is that Pruitt’s repeal argument is not as simple as it might seem. What if the issue does end up in the U.S. Supreme Court and the court upholds the decision? Then the call for repeal becomes a tangled thicket involving at least three sections of the state constitution. Conversely, what if the high court rejects that ruling and rules the monument can stay? Then Pruitt’s repeal argument becomes as meaningless as the states’ rights argument against same-sex marriage. It’s just political posturing.
Some legislators, in response to the ruling, want to impeach the judges who ruled in favored of removing the monument, but, again, the constitution is so obvious on this point that it’s difficult to see how much traction this idea could get among people in some type of recall or impeachment effort. Judges must follow the law even if they don’t agree with it on a personal level. I think people will empathize with that.
People in favor of the Oklahoma monument point to the U.S. Supreme Court decision in 2005 to allow such a monument on the state Capitol grounds in Texas, but they often fail to mention the court also ruled at the same time against allowing Ten Commandment displays at two courthouses and a school district in Kentucky. The seemingly opposite rulings hinged largely on the fact that the Texas monument had a 40-year-old history and had not been legally challenged during that time.
Who knows what the divided high court would rule on the Oklahoma case, but the monument, which was installed only in 2012, does not have a similar history as the Texas monument. The legislator, state Rep. Mike Ritze (R-Broken Arrow), who led the effort to place the monument on state grounds and whose family donated $10,000 to the project, lists himself as an “ordained Southern Baptist deacon” on his legislative profile.
Whatever the ultimate outcome in this case, this much is true: This spectacle is about religious conservatives here trying to push their worldviews on people who don’t share those narrow worldviews. It’s about political posturing and maneuvering. It’s about the political power of the Southern Baptist Church and other Christian fundamentalist churches in Oklahoma. It’s about the real threat of theocracy here and throughout the country.
It’s NOT about the foundation of the law or even constitutional interpretations.
The year 2004 will always be considered a bleak year for equality in Oklahoma when state voters overwhelmingly approved a constitutional amendment that defined marriage as “between one man and one woman.”
I had just started this blog in earnest a few months before that November vote in the general election. What struck me and others I knew in favor of same-sex marriage and gay rights in general back then wasn’t so much the overall outcome but the vote totals and percentages themselves.
The numbers were suffocating and depressing. The Oklahoma Senate voted 38 to 7 and the Oklahoma House of Representatives voted 92 to 4 to put the measure on the ballot. Oklahomans voted 1,075,216 in favor of State Question 711 limiting marriage to a man and woman while only 347,303 of them voted against it. That’s an approximately 76 to 24 percent split.
The ballot title itself reeked of exclusion and hatred:
This measure adds a new section of law to the Constitution. It adds Section 35 to Article 2. It defines marriage to be between one man and one woman. It prohibits giving the benefits of marriage to people who are not married. It provides that same sex marriages in other states are not valid in this state. It makes issuing a marriage license in violation of this section a misdemeanor.
Note the phrase “benefits of marriage.” Why even use the word “benefits” in a rhetorical sense. Was the point to rub it in the faces of the gay community? It sounds like something a playground bully might say with a nasty smirk. I get to have the benefits. You don’t. Ha ha ha. Note, too, the provisions that prohibit the state from recognizing other state laws and criminalizing same sex marriage.
As we now know, the amendment and similar measures in Kansas, New Mexico, Colorado, Utah and Wyoming were overturned by a federal panel of the 10th Circuit Court of Appeals in 2014. On Friday, the U.S. Supreme Court made same-sex legal throughout the nation under an interpretation of the Fourteenth Amendment.
As I mentioned, it seemed suffocating and depressing here in 2004. On a personal level, I wondered at that time, like I’m sure others here did, whether it was worth it to keep on fighting for progressive causes in Oklahoma. I definitely thought about writing off Okie Funk as a short experiment at that point, but eventually SQ 711 served as another catalyst for people to keep on fighting. I doubled down on the political writing and new people and a new generation rose up here to fight for equality and other progressive causes at the local level.
The Oklahoma City Pride Festival and Parade grew in size, and the Lesbian, Gay, Bisexual and Transgendered (LGBT) community here—at least from my perspective—became better organized and recognized as a political force.
Meanwhile, sympathetic depictions of LGBT people continued to appear in movies and television shows, and a younger generation showed their tolerance and support. In 2012, President Barack Obama became the first president to endorse same-sex marriage. Before this, of course, thousands of gay people and others stood up for equal rights, sometimes losing their lives to do so. There were the New York Stonewall riots in the late 1960s and the HIV activists in the 1980s. I could go on, but I’m not the one to write this particular history in all its detail, although it feels good to be on the right and winning side.
So what a wonderful moment in history! What a turnaround in feelings and reactions from the dark days of 2004 in Oklahoma when it seemed the same-sex marriage fight could take another generation or even longer here and I was ready to give up on this place when it came to politics.
Here are the words from a document initially more than 900-pages long that conservatives here seized on to make a case to stop low-income people from getting health insurance:
“Exchange established by the State . . .”
The U.S. Supreme Court upheld the 2010 Affordable Care Act Thursday in a 6 to 3 ruling that had driven some local conservatives, such as The Oklahoman editorial board and U.S. Sen. James Lankford to make some of the most tortuous arguments ever used or given credence in the public arena. In the end, now that the ruling has come down, it all seems so absurd.
Why are we just now debating the five words in a law passed five years ago? It’s because conservatives are trying to find anything they can to deny people health insurance.
The ruling clarifies that subsidies for health insurance can be given to qualifying low-income people on the insurance exchanges maintained by the federal government for those states that chose not to established their own state-operated exchange. That was always the intent of the law, which is clarified throughout its initial pages and subsequent regulations, including an Internal Revenue Service ruling.
The law was always meant to be a national law, not one designed for only particular states that opted in on the law. The idea that the five words I quoted above prove otherwise is cherry picking at its worst. The fact so much money and time has gone into addressing the argument seems to me incredibly wasteful and ridiculous, and the 6-3 ruling in a normally 5-4 divided court shows the case had little to no merit.
Chief Justice John Roberts, who wrote the majority opinion, said it this way: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible we must interpret the Act in a way that is consistent with the former, and avoids the latter.”
Let me parse that even further. Is there any doubt that the law was conceptualized to help get as many people as possible health insurance? Those arguing that “the State” was an intentional limitation are incredibly wrong or being deliberately deceptive. I choose the latter. Those that argue the five words render the entire debate, Congressional vote, more debate and legal wrangling over the law meaningless and void, including all the subsequent regulations, are just trying to manipulate or find a loophole. It’s simple dishonest politicking.
Here’s how The Oklahoman editorial board disingenuously lamented the ruling:
If the plain meaning of a law can be ignored and unilaterally revised, based on the whims of presidential administrations or judges overly concerned with political considerations, then the law provides neither definitive citizen protection nor regulatory clarity.
But those five words have to be read in a context. Anyone can pick out five words in an incredibly long document and distort them. What about typos or word omissions or, perhaps in this case, a confusing phrase? All these rhetorical issues can be reconciled. It’s a question of a simple fix in language.
As Roberts wrote, “Contrary to petitioners’ argument, Congress did not believe it was offering states a deal they would not refuse — it expressly addressed what would happen if a state did refuse the deal.” That’s exactly right. It’s clear in the law, was made clear in Congress and was made clear by the subsequent IRS ruling. The federal government would run the exchange for states that “did refuse the deal.” How difficult is that to understand?
Oklahoma, of course, is one of 37 states that “did refuse the deal,” including not accepting additional Medicaid money from the federal government.
U.S. Sen. James Lankford, who confidently predicted in a Senate speech that the high court would not allow subsidies in states without a state-operated exchange, said before the ruling, “I believe they’re going to rule on the plain text of the law. Does the law mean what the law says? Or can the administration reinterpret it based on their preferences?" Again, cherry picking five words from a longer document doesn’t constitute “the plain text of the law,” and this wasn’t the administration reinterpreting anything. How many times must this be said before conservatives get it: The intent of the law was to provide access to health insurance and subsidies to uninsured people in ALL the states. This is not a reinterpretation. Lankford is as wrong as his wise and bold prediction in his Senate speech.
Then there’s Oklahoma Attorney General Scott Pruitt, who has sued the federal government over this one law four times. Let me cherry pick his statement, which you can find in its entirety here, in response to the ruling. Pruitt argues, “There’s no doubt the rule of law took a hit today, but I won’t be deterred from continuing to fight for the rule of law and our founding principles.”
What in the world do “our founding principles,” always subject to an incredible amount of debate in the first place, have to do with five cherry picked words? Pruitt’s and Lankford’s rhetoric show their intentions are political rather than legal. I understand they’re politicians.
I wasn’t a big fan of the ACA when it was signed into law in 2010 because I wanted a universal public insurance option, but I did see it and still do as a first step towards that goal. Health care should be a human right. It establishes our basic humanity. Let’s debate that point in Congress, courts, schools and in our homes, but let’s quit wasting time on “frivolous lawsuits,” a term I bet is used more often by conservatives than progressives. The ACA is five years old now. It’s working. It can be improved. Local conservatives here, especially Pruitt, need to let it go.